# Appendix — Pegg v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0841%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 970

## Text

swe ceS
01 816 Nov 01 2001

No. G@OCE OF THE CLERK

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2000

JOE HARRY PEGG,
Petitioner,

US.
UNITED STATES OF AMERICA,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI

MICHAEL S. PASANO WILLIAM J. GENEGO*

Zuckerman, Spaeder, Nasatir, Hirsch, Podberesky
Taylor & Evans & Genego
Suite 900 2115 Main Street
201 S. Biscayne Boulevard Santa Monica, CA 90405
Miami, FL 33131 (310) 399-3259
(305) 579-0110
Counsel for Petitioner
JOE HARRY PEGG

* Counsel of Record

WaAnY

A-1
APPENDIX A
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-11287-J]

JOE HARRY PEGG,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,

Respondent-Appellee.

On Appeal from the United States District Court
for the Middle District of Florida

Filed August 3, 2001

(Opinion 7 Che.
F.2d ).

Before. © CARNES and RONEY, Circuit Judges,
and ALAIMO’%, Distict Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and
no member of this panel nor other Judge in regular
active service on the Court having requested that the
Court be polled on rehearing en banc (Rule 35, Federal
Rules of Appellate Procedure; Eleventh Circuit Rule
35-5), the Petition(s) for Ranearsng En Banc are
DENIED.

ENTERED FOR THE COURT:

Paul H. Roney,
United States Circuit Judge

* Honorable Anthony A. Alaimo, U.S. District Judge
for the Southern District of Georgia, sitting by
designation.

ee ae. ee a

B-3
APPENDIX B

253 F.3d 1274

Joe Harry PEGG,
Petitioner-Appellant,

v.
UNITED STATES of America,
Respondent-Appellee.

No. 99-11287.

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

June 12, 2001, Decided
June 12, 2001, Filed

Before CARNES and RONEY, Circuit
Judges, and ALAIMO *, District Judge.

* Honorable Anthony A. Alaimo, U.S.
District Judge for the Southern District

of Georgia, sitting by designation.
RONEY, Circuit Judge:

Defendant Joe Harry Pegg was convicted on his
plea of guilty to one count of conspiracy to import

B-4

marijuana in violation of 21 U.S.C. § 963, and given a
360-month sentence. He appeals the denial of his 28
U.S.C. § 2255 collateral attack on that conviction with
a single issue: the district court erred in not letting him
withdraw his guilty plea, either before or after
sentencing, on the ground that his attorney had a
conflict of interest that deprived him of his
constitutional right to effective assistance of counsel.
After a four-day evidentiary hearing, the district court
determined that, although one of his attorneys did
indeed have a conflict of interest in Pegg's going to
trial, the conflict of interest of that attorney did not
deprive Pegg of effective assistance of counsel. See
United States v. Pegg, 49 F. Supp. 2d 1322 (M.D. Fla.
1999). That finding being neither clearly erroneous
nor contrary to law, we

1. The Facts Concerning the Guilty Plea.

The facts of this case unfolded over a sixteen-
year period. Pegg became acquainted with
Washington, D.C. attorney James E. Sharp in 1981
when Sharp represented Pegg in a joint federal and
state marijuana prosecution. Pegg and Sharp became
good friends thereafter, and Sharp continued to
represent Pegg on and off through their friendship. In
March 1994, a federal grand jury in Tampa, Florida
returned the indictment that is the subject of this
appeal. Pegg was charged as one of several individuals
who conspired to import marijuana into the United

B-5

States in 1988 and 1989. Pegg asked Sharp and Tom
Lankford, Sharp's law partner, to represent him in the
matter, and both Sharp and Lankford agreed. Sharp
engaged John Fitzgibbons, a Tampa attorney, to be
local counsel for Pegg in the case. Cynthia Collazo,
the Assistant United States Attorney ("AUSA")
assigned to prosecute Pegg's case, frequently discussed
the possibility of a plea agreement with all three of
Pegg's attorneys. They also discussed the likelihood
that Pegg could receive a reduced sentence if he entered
into a plea agreement and cooperated with the
government.

In September 1994, AUSA Collazo was
contacted by the attorney for Reggie Baxter, a co-
conspirator of Pegg's who became a government
witness. Baxter's attorney explained to AUSA Collazo
that Sharp may have had privileged conversations with
Baxter that would cause Sharp a conflict of interest in
representing Pegg. AUSA Collazo instructed a federal
agent to interview Baxter and also sent a letter to Sharp
and Lankford alerting them that Sharp's contact with
Baxter might have caused a conflict of interest. Sharp
and Lankford denied the existence of any conflict of
interest. AUSA Collazo then interviewed Baxter at the
federal lock-up facility. In unsworn statements, Baxter
told AUSA Collazo that shortly after he had been
arrested in 1992 for participating in the marijuana
importation conspiracy charged in the instant case,
Sharp had met with him and arranged for Pegg to pay

B-6

a jportion of Baxter's legal fees. Baxter then stated that
Peegg had retained attorney Dick Hibey to represent
Baxter in the case. Baxter further claimed that Sharp
athd Hibey helped him concoct a false story to help
exculpate Pegg.

AUSA Collazo expressed concern that Baxter's
alllegations regarding Sharp would come up at trial and
affect Sharp's ability to represent Pegg. AUSA Collazo
notified Sharp, Lankford, and Fitzgibbons that they
should alert the district court of the potential conflict.
Fitzgibbons told AUSA Collazo that even if Sharp was
disqualified from representing Pegg, he could try the
Case and win. On November 17, 1994, AUSA Collazo
Prepared a motion to disqualify Sharp and Lankford.
When Sharp and Lankford received the motion for
disqualification, they, along with Fitzgibbons, were
Pp'reparing to go to trial and did not intend to enter a
guilty plea. Pegg's attorneys collectively discussed the
conflict issue and decided that, in the event Sharp
emded up having to testify at trial, Fitzgibbons would
assume the role of lead attorney in the case. The
attorneys discussed with Pegg the nature of Sharp's
conflict, and the possible consequences of Sharp
Continuing to serve as his counsel, and the possibility
that Sharp may need to disqualify himself from the
case. Pegg begged Sharp not to withdraw from the
case, saying "don't abandon me."

B-7

On November 28, 1994, Pegg, Sharp, Lankford,
and Fitzgibbons appeared in court prepared to argue
the government's disqualification motion and other
pretrial motions. Unexpectedly, Bernie Getchman,
another co-defendant in the case whose counsel had
previously advised Pegg's attorneys that he was
definitely going to trial, pled guilty to all the charges in
the indictment. During his plea colloquy, Getchman
testified that Pegg had hired him to direct, organize,
and control the marijuana importation and that he had
done so at Pegg's direction. The district court granted
the parties a continuance until the following day to
attempt to negotiate a plea in the case.

AUSA Collazo, Sharp, and Lankford met and
agreed that Pegg should submit to an interview by a
Drug Enforcement Agency ("DEA") agent to see if
Pegg had any information that would be helpful to the
government. The DEA agent told Pegg that if he
cooperated with the government, the government
would likely move to reduce his sentence below that
required by the sentencing guidelines. In Pegg's
presence, Fitzgibbons, an experienced federal trial
attorney in Tampa, suggested that Pegg was likely to
get a good deal at sentencing, predicting that the
sentencing judge was likely to sentence him to time
served, if he entered a guilty plea, turned over
monetary assets, and cooperated in interviews with the
DEA.

B-8

Pegg's attorneys negotiated a written plea
agreement with the government, which they brought
to Pegg that evening. The three lawyers collectively
decided that it was in Pegg's best interest to plead
guilty, and Pegg agreed. During the plea colloquy,
Pegg appeared calm and coherent and never raised any
issue regarding Sharp's conflict of interest. The district
court qualified the plea and went through a few
questions that were meant to show Pegg's waiver of
Sharp's conflict of interest.

Pegg was not sentenced until fifteen months
after he had entered his guilty plea. Fitzgibbons
represented Pegg during the sentencing hearing on
February 16, 1996. Prior to sentencing, Pegg was
afforded several opportunities to cooperate with the
government. The interviewing DEA agent noted,
however, that Pegg had not been truthful in the
interviews. Because Pegg had not complied with the
terms of the plea agreement to date, Fitzgibbons did
not want to proceed with sentencing that day and
requested a continuance. Once Pegg realized that the
government had not filed a motion for downward
departure from the sentencing guidelines, Pegg told
Fitzgibbons that he crane to withdraw his plea. The
district court denied Pegg's request.

B-9
2. The Standard For Relief For Conflict of Interest.

To obtain relief on a case of this kind, a
defendant must show first, that his attorney had an
actual conflict of interest, and second, that the conflict
adversely affected counsel's performance. See Freund v.
Butterworth, 165 F.3d 839, 858 (11th Cir. 1999). In
order to establish a violation of the Sixth Amendment,
a defendant "must demonstrate that an actual conflict
of interest adversely affected his lawyer's
performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 64
L. Ed. 2d 333, 100 S. Ct. 1708 (1981); see also Freund,
165 F.3d at 858. A § 2255 petitioner must show
"inconsistent interests and must demonstrate that the
attorney made a choice between possible alternative
courses of action...."" McConico v. Alabama, 919 F.2d
1543, 1546 (11th Cir. 1990) (quoting Smith v. White,
815 F.2d 1401, 1404 (11th Cir. 1987).

a. The Attorney's Conflict of Interest.

As to the first prong of the showing Pegg had to
make, the district court found and the government
does not deny that Sharp labored under an actual
conflict of interest created by co-conspirator Baxter's
allegations that Sharp had engaged in unethical and
criminal activity in connection with his representation
of Pegg.

B-10

b. No Adverse Effect on Assistance of Counsel
and the Guilty Plea.

As to the second prong, even if an actual conflict
of interest exists, there must be proof that the conflict
adversely affected counsel's performance in order to
rise to the level of a Sixth Amendment violation. See
Buenoano, United States v. Buenoano, 74 F.3d 1078,
1086 (11th Cir. 1996) ("In assessing whether an actual
conflict adversely affected counsel's representation, ' a
petitioner need not show that the result of the trial
would have been different without the conflict of
interest, only that the conflict had some adverse effect
on counsel's performance.’ (quoting McConico, 919
F.2d at 1548)).

To prove adverse effect, a habeas corpus
petitioner must show: (1) the existence of a plausible
alternative defense strategy or tactic that might have
been pursued; (2) that the alternative strategy or tactic
was reasonable under the facts; and (3) a link between
the actual conflict and the decision to forgo the
alternative strategy of defense. See Freund, 165 F.3d at
860 (holding that a petitioner must establish that the
alternative defense strategy was inherently in conflict
with or not undertaken due to the attorney's other
loyalties or interests); see also Burden v. Zant, 24 F.3d
1298, 1305 (1ith Cir. 1994). If there is a guilty plea
involved, this Court looks at whether the attorney's
actual conflict adversely affected the defendant's

B-11

decision to plead guilty. See, LoConte v. Dugger, 847
F.2d 745, 755 (11th Cir. 1988).

In a four-day evidentiary hearing on the instant
§ 2255 motion, the district court heard extensive
testimony from Pegg's attorneys and others involved in
the events leading up to the entry of Pegg's guilty plea.
The record shows that Pegg had the advice of several
attorneys and that the plan under which Pegg was to
enter his guilty plea was devised by Fitzgibbons, an
attorney who did not act under any conflict of interest.
During his testimony Sharp denied Baxter's
incriminating allegations that he had concocted a plan
to fabricate a story to the DEA. Even though Sharp
acknowledged that he had briefly met with Baxter,
Sharp testified that he refused to discuss the case with
Baxter further once Baxter conveyed to him that he
had information that incriminated Pegg. Sharp also
acknowledged that he and Pegg had had a personal and
professional relationship for several years and that Pegg
had begged Sharp to remain as his counsel in this case.
Sharp admitted that Baxter's allegations upset him, that
he was concerned about his own interest, but insisted
he put his client's interest first and foremost in assisting
Pegg in making the decision to plead guilty. Sharp also
testified concerning the active involvement of Pegg's
other attorneys, who decided collectively that it would
be in Pegg's best interest to plead guilty. Fitzgibbons
testified that he had devised and promoted the plan for
Pegg to plead guilty and to cooperate with the

B-12

government in order to receive a reduced sentence.
Fitzgibbons further testified that although Pegg.
struggled with the decision to plead guilty, he believed
that at the time Pegg entered the plea he wanted to do
so.

Furthermore, the reasoning of Pegg's attorneys’
collective recommendation for Pegg to plead guilty is
clearly supported by the record. If Pegg had not
pleaded guilty, Getchman, a co-conspirator turned
government witness, would have testified against Pegg
at trial and his testimony would have been devastating
to Pegg's case. Although there was a clear alternative
to the chosen defense strategy — to go to trial — there is
evidence in the record to support the district court's
finding that Sharp's performance was not adversely
affected by Baxter's allegations. Pegg's assertion that
Sharp avoided the publication at trial of Baxter's
allegations against Sharp is at best speculative, and the
collective recommendation by Pegg's attorneys for
Pegg to plead guilty was in Pegg's best interest at the
time of his sentencing.

The record amply supports the decision of the
district court that Pegg did not receive ineffective
assistance of counsel because of the conflict of interest
of his attorney, James E. Sharp.

B-13
3. Inapplicability of Per Se Rule.

Pegg urges this Court to adopt the Second
Circuit's holding in United States v. Fulton, 5 F.3d 605
(2d Cir. 1993), in which the court held there to be a per
se violation of the Sixth Amendment not subject to
waiver by the defendant under the circumstances of
that case. In the middle of the trial at issue in Fulton,
the government informed the court in an ex parte
conference that the government witness on the stand
previously stated that he had once imported heroin for
defendant Fulton's trial counsel. See, id. at 607. In spite
of the fact that this implicated counsel in the very
crime for which Fulton, the defendant, was being tried,
the court permitted counsel to continue to represent
defendant in the trial. See Fulton, 5 F.3d at 608. The
Second Circuit held this to be error. See Fulton, 5 F.3d
at 612. Relying on its precedent, the Second Circuit
noted that there is a per se violation of defendant's
Sixth Amendment right to effective assistance of
counsel without the necessity of showing an adverse
effect as required by Cuyler v. Sullivan, 446 U.S. 335,
64 L. Ed. 2d 333, 100 S. Ct. 1708 (1981), "when the
attorney has engaged in the defendant's crimes."
Fulton, 5 F.3d at 611.

Even if there may be circumstances under which
a per se rule should be applied, in our judgment Fulton
would not require a reversal in this case. In limiting
language in Fulton the court cautioned that where the

B-14

district court could rule out the possibility that the
allegations are true through an evidentiary hearing, a
waiver is possible. Fulton, 5 F.3d at 613. There was an
evidentiary hearing in this case, and the district court
was not clearly erroneous in accepting “Sharp's
uncontroverted testimony that Baxter's allegations
were false." Pegg, 49 F. Supp. 2d at 1332.

Furthermore, the accusation in Fulton that
counsel was involved in the alleged crime would seem
to affect counsel's handling of the trial. In addressing
the defendant, the district court in Fulton said:

"... you understand that first of all lead
trial counsel will be to some extent
distracted by this and, secondly, that he
will not be able to cross-examine the
witness about this ..."

Fulton, 5 F.3d at 608 (quoting the district court).

In this case, there was no trial, and there was no
proffer of sworn testimony from Baxter to contradict
the sworn testimony from Sharp that Baxter's
allegations were false. See Pegg, 49 F. Supp. 2d at 1332.
The allegations in this case involve counsel's
representation of the defendant in preparation for trial,
and actions that would become a problem to counsel
only if there were a trial. The allegations did not
involve a charge that counsel was involved in the crime

B-15

with which defendant was charged. The proceedings
remained at a stage during which Sharp could continue
to let Pegg's interest trump any interest he might have
if the case went to trial. There was an able conflict-free
counsel, Fitzgibbons, available to defend Pegg in the
event of a trial. Fitzgibbons was available to Pegg and
did assist him in assessing the strategy and devising a
plan for Pegg to plead guilty in the hopes of receiving
a reduced sentence. There is no reason, under the facts
of this case, to presume that the defendant suffered a
violation of his Sixth Amendment right to counsel in
connection with his entry of a guilty plea.

The district court properly denied Pegg's
petition for relief under 28 U.S.C. § 2255.

AFFIRMED.

C-16
APPENDIX C

49 F. Supp.2d 1322
UNITED STATES OF AMERICA
JOE HARRY PEGG
CASE NO. 94-38-CR-FTM-17D

UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF FLORIDA,
FORT MYERS DIVISION

April 28, 1999, Decided

Before Elizabeth A. Kovachevich, UNITED
STATES DISTRICT JUDGE.
ORDER

Before the Court is the defendant's motion to
vacate, set aside, or correct his sentence pursuant to 28
USS.C. § 2255 (Doc. 348) filed on February 2, 1997.
The government filed a response (Doc. 357) on April 4,
1997. As grounds for his motion the defendant alleges
that: 1) his counsel was ineffective based on a conflict
of interest arising out of his counsel's own self-interest
and concerns, and 2) the Court abused its discretion in
denying the defendant's motion to withdraw his guilty
plea. An evidentiary hearing has been held on the

C-17

defendant's claims. Because the evidence does not
support the claims, the defendant's motion will be
DENIED.

I. FACTS

A. Background

In November of 1988, the defendant arranged to
have a ship, the Turtola, leave Colombia with
approximately 20,000 pounds of marijuana. The
Turtola was to transport the marijuana to the Florida
Keys. Bernie Getchman, one of the co-defendants in
this case, was responsible for the off-load of the
marijuana into the Florida Keys, where the marijuana
would be trans-shipped for a later sale. Only
approximately 5,000 pounds of the marijuana was
successfully imported to the United States and
ultimately sold.

Sometime in early 1989, the defendant made
arrangements for another shipment from Colombia to
the Florida Keys aboard the Turtola. This time a co-
conspirator named Reggie Baxter was responsible for
the off-load and importation of the marijuana into the
United States. Once in the Florida Keys, the marijuana
aboard the Turtola was to be transported to several
boats launched from the area of Marco Island, Florida.
However, the Turtola was intercepted by the United
States Coast Guard and only one of the boats succeeded

in taking approximately 5,000 pounds of marijuana.

C-18

The rest of the marijuana aboard the Turtola was seized
by the Coast Guard. R. Doc. 179, pp. 15-16."

In May, 1990, Baxter was indicted for his
involvement in the marijuana importation aboard the
Turtola. In February, 1991, Baxter pled guilty to the
marijuana importation and agreed to cooperate with
the government.

On March 29, 1994, the grand jury returned a
two count sealed indictment against the defendant and
others, including Getchman. The first count charged
the defendant with conspiracy to import marijuana in
November, 1988. The second count charged the
defendant with conspiracy to import marijuana in
April, 1989. On June 10, 1994, the indictment was
unsealed and the defendant was arrested at his home
that morning. R. Doc. 363, p. 5.

After the defendant was transported to the
Middle District of Florida, James E. Sharp and Vernon
Thomas Lankford, of the Washington, D.C. firm of
Sharp and Lankford, entered an appearance in this case
as the defendant's counsel. Jd. Sharp is a nationally
renowned criminal trial lawyer, a former federal
prosecutor, and a member of the American College of

' Citations to the record will be as follows: R. Doc.
[Docket Number].

C-19

Trial Lawyers. R. Doc. 405, p. 38. Sharp's attorney-
client relationship with the defendant began in 1981,
when Sharp represented the defendant in related state
and federal marijuana prosecutions. R. Doc. 404, pp.
101-108. At the time Sharp and Lankford entered an
appearance in this case, Sharp was also representing the
defendant and other members of the defendant's family
in a civil forfeiture matter in the Eastern District of
Louisiana. R. Doc. 397, p. 172.

On August 8, 1994, John M. Fitzgibbons filed a
notice of appearance in the case as local counsel. R.
Doc. 95. Fitzgibbons, a well-known Tampa criminal
attorney with 24 years of experience, and a Board
Certified Criminal Trial attorney, had started his own
practice in 1987. Before going into private practice,
Fitzgibbons served as a state and federal prosecutor, a
special counsel to the House of Representatives Small
Business Committee, and in the Public Integrity
Section of the Justice Department. R. Doc. 404, pp. 4
8. Originally, Fitzgibbons's role in the defendant's case
was limited to that of local counsel. Fitzgibbons was
not expected to actively participate in the defense or in
the trial. R. Doc. 404, p. 15.

In a letter dated September 2, 1994, counsel for
the government, Assistant U.S. Attorney Cynthia
Hawkins (later Cynthia Hawkins Collazo) solicited
Sharp's position with regard to a potential conflict of
interest based on Sharp's contact with Baxter, who

C-20

would testify at trial against the defendant. Sharp's
partner, Lankford, telephoned Collazo in response to
the letter and denied the existence of any conflict of
interest. R. Doc. 398, p. 135 & R. Doc. 404, p. 117.

On October 11, 1994, the defendant's trial was
continued from October 17, 1994, to November 28,
1994. Sometime in September or October, 1994,
Collazo advised Sharp that, unless the defendant
entered a guilty plea, the government would file a
motion to disqualify Sharp based on the alleged conflict
of interest. Sharp responded that if the Court granted
the motion for disqualification, Fitzgibbons could try
the case. R. Doc. 404, pp. 217-18, 269. A week or two
before the trial, Sharp and Lankford asked Fitzgibbons
to travel to Washington D.C. to meet with them. R.
Doc. 404, pp. 15-16. When he arrived in Washington,
Fitzgibbons met with several attorneys. Fitzgibbons
remembered that the conflict issue was discussed and
that at some point he was told that he might have to
step in and try the case as first chair. R. Doc. 404, p.
17.

Approximately two weeks before the trial date,
Sharp informed Collazo that the defendant would
proceed to trial. On November 18, 1994, the
government faxed a copy of the proposed
“Government's Motion to Disqualify Counsel for the
Defendant Pegg.” In the motion, the government
argued that the evidence would show that Sharp had a

C-21

prior relationship with Baxter and that Sharp was
involved in unethical and criminal conduct related to
the charges for which the defendant was to stand trial.
The government's motion also implicated attorney
Richard Hibey in the wrongdoings. Hibey, a well-
known Washington D.C. attorney, had represented
Baxter when Baxter was indicted and pled guilty to the
1989 marijuana importation. Hibey was a close
personal friend of Sharp. R. Doc. 404, p. 122.

The government alleged in the disqualification
motion that after Baxter's indictment, but before the
defendant's indictment, the defendant arranged a
meeting between Sharp and Baxter. In that meeting,
Baxter allegedly discussed the facts of the April, 1989,
importation with Sharp and Sharp arranged to meet
with Baxter again in the future. The motion further
stated that at a later date Sharp introduced Baxter to
Hibey, and the three of them agreed that the defendant
would pay for a portion of Baxter's legal fees. Baxter
was allegedly aware that Sharp and Hibey had further
conversations regarding the extent of Baxter's
cooperation with the government. In the motion, the
government stated that Baxter would testify that Hibey
had discussed with Baxter a version of the events to tell
the government that was false and that Baxter would

testify as to Sharp's role in concocting that story. R.
Defendant's Evidentiary Hearing Exhibit 1.

C-22

The disqualification motion identified three
separate grounds for disqualification of the firm of
Sharp and Lankford from the defendant's
representation:

1) Sharp had a conflict between his duty to the
defendant and his duty to Baxter because Sharp entered
into an attorney-client relationship with Baxter that
involved privileged communications;

2) Sharp was subject to being called as a witness
against the defendant due to his personal knowledge of
the alleged arrangement concerning the defendant's
payment of part of Baxter's legal fees;

3) “the integrity of the court" required Sharp's
disqualification because Baxter would testify that Sharp
was involved in concocting a false story to the Drug
Enforcement Administration Agents to exculpate the
defendant.

In the motion, the government argued that if the
defendant proceeded to trial, Sharp's disqualification
was mandatory and could not be waived by the
defendant. The defendant argues that a fourth ground
for disqualification, which is the basis for the instant
motion to vacate, was created by the government's
making the disqualification of Sharp and Lankford
conditional upon the defendant's proceeding to trial.
The defendant argues that making the disqualification

i ee

C-23

contingent upon whether the defendant went to trial
made it in the firm's best interest to avoid the
publication of Sharp's alleged unethical and criminal
conduct at trial by convincing the defendant to plead

guilty. The Court notes that the disqualification
motion was never filed with the Court.

B. Evidentiary Hearing

At the evidentiary hearing on the instant
motion, Sharp vehemently denied Baxter's accusations
of impropriety. According to Sharp's testimony at the
evidentiary hearing, Sharp only met with Baxter once.
At that meeting, Baxter started to relate to Sharp the
facts of a marijuana importation. Baxter mentioned
the defendant's name and at that point in the
conversation Sharp stopped Baxter and told him “!
don't even want to talk anymore. I certainly can't
represent you." R. Doc. 404, p. 119. Baxter begged
Sharp to take his case and Sharp refused. R. Doc. 404,
p. 120. Baxter kept calling Sharp and asking him to
represent him. Finally, Baxter asked Sharp if he could
refer Baxter to another attorney. Sharp called Hibey
and asked Hibey if he would agree to talk to Baxter.
Hibey agreed to do it. Hibey then became Baxter's
counsel. R. Doc. 404, p. 122.

The testimony presented at the hearing revealed
that as soon as the firm of Sharp and Lankford received

the copy of the disqualification motion, they started

C-24

preparing a response. Paul Castellito, an associate at
the firm, was the attorney assigned to draft the
response to the disqualification motion. R. Doc. 397,
p. 92 & R. Doc. 404, p. 125. The response to the
motion was never filed with the Court.

Paul Knight, an attorney at the firm of Sharp
and Lankford at the time, testified at the hearing that
Sharp was overly concerned with regard to the
disqualification motion, and that the disqualification
issues became Sharp's primary focus and concern in the
days before trial. R. Doc. 397, pp. 176 & 225-228.
Further, Castellito testified that Sharp was concerned
about the allegations of improper conduct and their
effect on him personally. R. Doc. 397, p. 93. In his
testimony, Sharp admitted that he was concerned
about the government's allegations of impropriety.
However, Sharp stated that he always placed the
defendant's interests first. During his testimony, Sharp
said “if you begin with yourself, you are doing it
wrong. If you begin with the impact on [the client],
you're doing it right.". R. Doc. 404, p. 236. Sharp
further stated "I was concerned about myself. I don't
want to discount that at all... But also, make no
mistake about it, I was not going to sell [my client] out
for myself." R. Doc. 404, p. 273.7

? To the extent that Sharp's testimony might be
contrary to Knight's and Castellito's version of the
events, the Court accepts Sharp's testimony as

C-25

On November 28, 1994, the day the defendant's
case was scheduled for trial, Bernie Getchman entered
a guilty plea and identified the defendant, Joe Pegg, as
one of his co-conspirators. R. Doc. 263, p. 12 & R.
Doc. 404, p. 136. After Getchman entered his guilty
plea, Sharp asked the Court for a moment to speak
with co-counsel. Sharp testified that he believed that
Getchman's testimony could tilt the balance against the
defendant. R. Doc. 404, p. 138. Getchman pled guilty
to the charges in the indictment without the benefit of
a plea agreement. Sharp believed that because
Getchman did not have a plea agreement, there was a
good possibility that after the plea Collazo would offer
Getchman a reduced sentence in return for Getchman's
testimony against the defendant. R. Doc. 404, p. 137.

Sharp consulted with Fitzgibbons and the other
attorneys from his firm that were present at the time.
Fitzgibbons testified that, at that point, it became
“pretty clear fairly quickly that Judge Kovachevich [the
undersigned] would be the sentencing judge." R. Doc.
405, pp. 40-41. Fitzgibbons advised Sharp that if the
defendant pled guilty and this Court were to impose
the defendant's sentence, if the defendant agreed to

correct. In making this credibility determination,
the Court relies on the demeanor of the witnesses
and on their relative forthrightness in responding to
questions.

C-26

cooperate with the government, this Court would
reward the defendant's cooperation. Fitzgibbons told
Sharp that this Court was known to reward and give
lenient sentences to cooperators. R. Doc. 404, pp. 29-
30 & 140. Sharp believed that by pleading guilty, the
defendant could avoid the Getchman problem and
perhaps get a favorable venue for his sentencing. R.
Doc. 404, p. 141. After consulting with Fitzgibbons,
Sharp informed the trial judge, Honorable Lee P.
Gagliardi, that he believed the parties could resolve the
case without going to trial and requested a ten-day
continuance. Judge Gagliardi denied the request for a
ten-day continuance and gave the parties 24 hours to
resolve the issue of whether the defendant would plea
or would proceed to trial.

At the time Sharp informed Judge Gagliardi that
he believed the case could be resolved without a trial,
the defendant's plea agreement had not been drafted
and Sharp had not discussed the possibility of a plea
with the government in at least two weeks. R. Doc.
397, p. 181 & Doc. R. 404, pp. 195-96.

The government provided the defendant with a
proposed plea agreement sometime during the day on
November 28, 1994. Under the terms of the
agreement, the defendant was required to cooperate
with the government and to forfeit $ 8 million. The
forfeiture amount was reduced to $ 4 million during
the plea negotiations. Pursuant to the plea agreement,

C-27

in return for the defendant's cooperation and
forfeiture, the government would dismiss one of the
counts of the indictment, would not file second
offender papers, and would recommend a reduction in
the defendant's sentencing score sheet for acceptance of
responsibility. If the defendant failed to provide the
government substantial assistance, his guideline
sentence range would be 360 months to life
imprisonment. R. Doc. p. 179.

The defendant agonized over whether he should
plead guilty or go to trial. Before signing the plea
agreement, the defendant had extensive meetings with
his attorneys. During those meetings, the defendant
voiced his concern with regard to the forfeiture
amount. The defendant asked Sharp "Where are we
going to get that money?” R. Doc. 404, p. 146.
However, even though money was an issue, Sharp
testified that he assumed the defendant's brother
William (Bucky) Pegg would come up with the money.
Sharp stated "I think that was a realistic assumption."
R. Doc. 404, p. 254. Before proceeding to explain his
belief that Bucky Pegg could provide the forfeiture
money was a realistic, Sharp asked the defendant's
counsel whether that information was within the scope
of the attorney-client privilege that had not been
waived by the defendant. Without responding to
- Sharp's inquiry, the defendant's counsel withdrew the

C-28

question.’ Jd. Sharp then stated, "I was sure [the
defendant and his brother] could come up with [the
money]." R. 404, 255.

Also, during the meetings the attorneys
discussed with the defendant the issues raised by the
government's disqualification motion and the different
conflicts of interest raised in the motion. Fitzgibbons
testified that the conflict issue was discussed by the
lawyers in front of the defendant on several occasions.
R. Doc. 405, p.6. However, the defendant was
adamant that he wanted Sharp to represent him. R.
Doc. 404, p. 287. Sharp and Fitzgibbons testified that
they did not advise the defendant of his right to consult
an independent counsel on the conflict issue because
they believed that the defendant would refuse to do it.
R. Doc. 404, pp. 287-88, 290 & R. Doc. 405, pp. 43-44.

Sharp testified that at one point he considered
that it could be better to address Baxter's allegations in
court and deny them. However, before making the
final determination Sharp had to take into account the
impact that Sharp's testimony, if he was required to
testify, would have on the defendant's case. Sharp
stated that if he were to take the stand to contradict
Baxter's allegations, there was a strong possibility that

> At all times during the evidentiary hearing, the
defendant's attorneys tried to avoid any inquiries
directed to the defendant's finances.

> * . 7 5 <
POR IP AD Fe eft Sy Eee ees Ae aie

C-29

Sharp would have to testify regarding the contents of
his first conversation with Baxter and that in that
conversation Baxter implicated the defendant in the
1989 importation. Accordingly, Sharp believed that his
testimony at trial could severely hurt the defendant's
case. R. Doc. 404, p. 202.

Finally, after much deliberation, the defendant
signed the plea agreement sometime late on November
28, 1994. Sometime before the defendant pled guilty,
Collazo had made it clear that neither Sharp nor Hibey
was the target of a government investigation. It is not
clear from the record whether Collazo informed Sharp
personally or someone else conveyed the information
to Sharp. Sharp did not remember whether it was
Collazo or Hibey who had told him that he was not a
target. R. Doc. 404, pp. 124 8& 226-8. Also, the record
is not clear as to whether Sharp learned that he was not
a target on or before November 28, 1994, date in which
the trial was scheduled to begin.

On November 29, 1994, the defendant pled
guilty pursuant to the plea agreement. At the plea

hearing Judge Gagliardi inquired regarding the conflict
issues. Specifically, the inquiry consisted of the

following:

THE COURT: Some issue has arisen as to
whether or not there may be a conflict in [defense
counsel's] representation of you. You are familiar of

C-30

that, are you not?

THE DEFENDANT: Pretty much so. I
understand the situation, but I am happy with my
counsel.

THE COURT: You are happy, you are
content, in light of the fact that there may be a
problem with respect to their representation of you in
this matter?

THE DEFENDANT: Yes.

THE COURT: You are content to have them
represent you?

THE [DEFENDANT: Yes, I do.

THE COURT: Do you waive any conflict of
interest they may have in connection with this matter?

THE DEFENDANT: Yes.
THE COURT: All right. . .

R. Doc. 345, pp. 3-4.

Fitzgibbons testified that when the defendant
pled guilty he was satisfied with the defendant's

C-31

understanding of the conflict of interest issues.
Fitzgibbons stated that ethically he had no doubt in his
mind that, when the defendant was questioned by
Judge Gagliardi on the conflict issue, the defendant
understood the conflict. R. Doc. 405, p. 7. Further,
Fitzgibbons testified that, when the defendant entered
his guilty plea, Fitzgibbons believed it was in the
defendant's best interest to do so. Fitzgibbons stated:

I was comfortable that [the defendant]
wanted to [enter the plea] that day. I
never would have stood before a Federal
Judge and said the things I said if I felt
somebody had coerced [the defendant] or
forced [the defendant] to do it. I would
not do it. I wouldn't have signed my
name to the plea agreement.

R. Doc. 405, pp. 42-43. Fitzgibbons further testified,

I felt as a lawyer that the [conflict] issue
had been presented to the client in a fair
way; that the ups and downs, the pros
and cons were all laid out for the client;
the risks, the strategic decisions, all of
this, this was aired thoroughly. And
when it came time for the plea, that the
decision that [the defendant] made was a
decision he felt comfortable with.

OE ay 5 SR We eT EN eS > bk OE I IAL RG BORE PGE ey Ue CPS x OS Pe
Si ON Bee ODT Pen HOTEL Lal GERACE EO GENO Re Me LE Eat CP aD eg Hie tt aS fe

C-32
R. Doc. 405, p. 44.‘

After the defendant entered his guilty plea, he
informed his lawyers, including Fitzgibbons, on several
occasions that he wanted to withdraw his plea.
However, Fitzgibbons believed that the defendant was
just in an internal turmoil and was going back and
forth as to what he wanted to do. R. Doc. 405, p. 12.
Fitzgibbons testified that the discussions never reached
the point where the defendant instructed his lawyers
unequivocally that he wanted to withdraw his plea. R.
Doc. 405, p. 13. Fitzgibbons stated "if he gave me an
instruction to withdraw the plea, of course I would
have filed something, or had the Washington lawyers
file something." Jd.

The defendant's sentencing date was continued
on two occasions. On February 16, 1996, the date of
the defendant's sentencing, Fitzgibbons moved for a
third continuance. At a side bar conference,
Fitzgibbons explained to the court that the defendant
needed more time to cooperate with the government
and to comply with the terms of the plea agreement.
Further, Fitzgibbons expressed that the defendant was
placed in an untenable situation before he pled guilty

*. To the extent Fitzgibbons's testimony may be
~ contradicted by the testimony of other witnesses, the
Court accepts Fitzgibbons's version of the events as

gE OER NP ET ES Ae Ant a I ah = ee he PP

C-33

because of the accusations against his attorneys.
However, Fitzgibbons told the Court that when the
defendant pled guilty the defendant's attorneys:

Felt under the circumstances there was
a good chance [the defendant] was going
to cooperate, and the money would come
in. I think we are close from talking to
everybody in this thing except for
Southern Florida right now, I haven't
dealt with them, but I think we're close
on getting the money. My guy wants it
to happen, otherwise you are going to
have to sentence him to 30 years to life
and he's done.

R. Doc. S-44, p. 11.

The Court denied the continuance and
proceeded with the sentencing. The Court asked the
defendant if he had discussed the presentence report
with his lawyer. The defendant stated that he had not.
Fitzgibbons stated that he had discussed the
presentence report with the defendant about six
months before the sentencing and asked for a moment
to confer with his client. After conferring with the
defendant, Fitzgibbons moved to withdraw the
defendant's guilty plea. The Court denied the motion
to withdraw. R. Doc. 342, pp. 2-7. The defendant did
not appeal the Court's denial of his motion to

C-34

withdraw. At the evidentiary hearing, Fitzgibbons
testified that he did not believe, based on his
professional experience, that an appeal of the motion to
withdraw would succeed because Fitzgibbons did not
feel the Court had abused its discretion in denying the
motion. R. Doc. 405, p. 47.

II. CONFLICT OF INTEREST
A. Rules of Law

The Sixth Amendment to the United States
Constitution guarantees criminal defendants the right
to effective assistance of counsel. The right to
assistance of counsel includes the right to conflict free
representation. A counsel's duty of loyalty to his
client includes "a duty to avoid conflicts of interest,”
which the Supreme Court considers "perhaps the most
basic of counsel's duties." Strickland v. Washington,
466 U.S. 668, 690, 692, 80 L. Ed. 2d 674, 104 S. Ct.
2052 (1984). The right to conflict free counsel applies
to plea proceedings as well as trials. Hill v. Lockhart,
474 US. 52, 57, 88 L. Ed. 2d 203, 106 S. Cr. 366 (1985).

1. Conflict of interest standard

"To establish a violation of the Sixth
Amendment, a defendant who raised no objection at
trial must demonstrate that an actual conflict of

interest adversely affected his lawyer's performance.”

C-35

Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333,
100 S. Ct. 1708 (1980). When the defendant shows that
an actual conflict adversely affected his counsel's
performance, prejudice is presumed and the defendant
is entitled to relief. Holloway v. Arkansas, 435 U.S.
475, 490, 55 L. Ed. 2d 426, 98 S. Cr. 1173 (1978).

In cases like the one now before the Court,
where the alleged conflict of interest involves the
attorney's self-interest, an actual conflict exists when:

1) the attorney has engaged or has been accused
of engaging "in wrongful conduct related to the charge
for which the defendant is on trial." United States v.
Fulton, 5 F.3d 605, 610 (2d Cir. 1993). The Fulton
court held that when this happens

It creates one of two actual conflicts. First, if
the allegations are true . . . the attorney may feel that a
spirited defense could uncover convincing evidence of
the attorney's guilt or provoke the government into
action against the attorney. Moreover, the attorney is
not in a position to give unbiased advice to the client as
to such matters as to whether or not to testify or to
plead guilty and cooperate since such testimony or
cooperation from the defendant may unearth evidence
against the attorney . . - Second, even if the attorney is
demonstrably innocent and the government’ $ witness's

allegations are plainly false, the defense is impaired
because vital cross-examination becomes unavailable to

C-36
the defendant.

Id. (citations omitted); or

2) "a lawyer's own personal interest would be
compromised by pursuing a particular defense theory."
Freund v. Butterworth, 165 F.3d 839, 886 (11th Cir.
1999) (Tjoflat, J., dissenting), citing United States v.
McLain, 823 F.2d 1457, 1463-64 (11th Cir. 1987).

A defendant who demonstrates the existence of
an actual conflict must then show that the conflict had
an adverse effect on the defendant's counsel's
representation. Pursuant to Freund v. Butterworth, to
prove adverse effect a defendant must satisfy three
elements:

First, he must point to "some plausible
alternative defense strategy or tactic [that] might have
been pursued." United States v. Fahey, 769 F.2d 829,
836 (1st Cir. 1985); see also, Porter [v. Wainwright, 805
F.2d 930, 939-40 (11th Cir. 1986), cert. denied, 482 U.S.
918 (1987)]. Second, he must demonstrate that the
alternative strategy or tactic was reasonable under the
facts. Because prejudice is presumed, see, Strickland,
466 U.S. at 692, 104 S. Ct. 2052, the petitioner "need
not show that the defense would necessarily have been
successful if [the alternative strategy or tactic] had been
used," rather he only need prove that the alternative

“possessed sufficient substance to be a viable

C-37

alternative." Fahey, 769 F.2d at 836. Finally, he must
show some link between the actual conflict and the
decision to forgo the alternative strategy of defense. In
other words, “he must establish that the alternative
defense was inherently in conflict with or not
undertaken due to the attorney's other loyalties or
interests." Freund v. Butterworth, 165 F.3d at 860. The
Freund Court underlined that "prejudice is presumed
only if the defendant demonstrates that ...'an actual
conflict of interest adversely affected his lawyer
performance." /d. The Court finds that the Freund
test applies to the defendant's claim.

2. Waiver

A criminal defendant can waive his right to
conflict free counsel. United States v. Garcia, 517 F.2d
272 (5th Cir. 1975). Before allowing a defendant to
relinquish his right to conflict free representation
certain procedures must be followed:

The district court should address
each defendant personally and
forthrightly advise him of the potential
dangers of representation by counsel
with a conflict of interest. The defendant
must be at liberty to question the district
court as to the nature and consequences
of his legal representation. Most
importantly the court should seek to

- C-38

elicit a narrative response from each
defendant that he has been advised of his
right to effective representation, that he
understands the details of his attorney's
possible conflict of interest and the
potential perils of such a conflict, that he
has discussed the matter with his
attorney or if he wishes with outside
counsel, and that he voluntarily waives
the Sixth Amendment protections. It is
of course, vital that the waiver be
established by "clear, unequivocal, and
unambiguous language."

Id. at 278 (citations omitted).

The government argues that the defendant
waived his right to conflict free counsel during the plea
colloquy before Judge Gagliardi. The government's
allegations are not supported by the record. The
colloquy between Judge Gagliardi and the defendant
failed to establish by “clear, unequivocal, and
unambiguous language" the nature and consequences of
the defendant's waiver. Even though the Court has no
doubt that the defendant understood the nature and
consequences of the waiver, the Court reached that
conclusion after hearing the testimony at the
evidentiary hearing, not from the face of the colloquy.
Further, the record shows that the defendant was never

informed of his right to an independent counsel.

C-39

Whether or not the defendant would have acceded to
that representation is irrelevant. The Court finds that
the defendant's waiver colloquy did not satisfy the
Garcia requirements and therefore did not constitute a
valid waiver. Accordingly, the Court will address the
merits of the defendant's claim.

B. Merits

The defendant's main contention is that the
government's conditioning of Sharp's disqualification
on whether or not the defendant pled guilty created a
conflict of interest. The Court disagrees. The conflict
of interest was not created by the government's
conditioning Sharp's disqualification on whether or
not the defendant pled guilty. The conflict of interest
was created by Baxter's allegations of Sharp's unethical
and criminal activity. The government's conditioning

the disqualification on the guilty plea did not make the

conflict any less or any more real.

The defendant contends that by the defendant
pleading guilty, Sharp and his firm avoided the
publication at trial of Baxter's allegations of improper
conduct against Sharp. If, on the other hand, the
defendant had proceeded to trial, Baxter would have
testified that Sharp and his good friend Hibey
concocted a story that Baxter was supposed to tell to
the Drug Enforcement Administration negating the
defendant's involvement in the marijuana importation.

C-40

Sharp's interest did not change by the government's
conditioning the disqualification on the plea.
However, the defendant has clearly established the
existence of an actual conflict of interest based on
Baxter's allegations. Baxter, a government witness,
alleged that Sharp was involved in criminal conduct
related to the crimes charged against the defendant in
the indictment.

Pursuant to Fulton, if the allegations of the
attorney's criminal acts are proved to be true, the
defendant need not show that the conflict adversely
affected the lawyer's performance. If the allegations
are false, the defendant has the burden of proving an
adverse effect. Fulton, 5 F.3d at 611. Because the
Court accepts Sharp's uncontroverted testimony that
Baxter's allegations were false, the defendant must
show that the conflict had an adverse effect on Sharp's
representation of the defendant. The defendant has
failed to meet this burden.

As stated above, to prove adverse effect the
defendant had to show: 1) a plausible alternative
defense strategy that could have been pursued, 2) that
the alternative strategy was reasonable under the
circumstances, and 3) that the alternative strategy was
inherently in conflict with or was not undertaken
because of Sharp's other loyalties or interests. Freund,
165 F.3d at 860.

C-41

The record shows that proceeding to trial was a
plausible and reasonable alternative to pleading guilty.
However, the record does not support a finding that
the defendant's proceeding to trial was inherently in
conflict with, or was not undertaken due to, Sharp's
loyalties or interests.

Proceeding to trial was not clearly in conflict
with Sharp's interests. Sharp testified that part of him
wanted to go to trial and clear the record with regard
to the allegations. If the defendant had gone to trial,

Sharp would have been able to take the stand and
contradict Baxter's allegations against him.

The defendant's lawyers, especially Sharp,
agonized in deciding whether to go to trial or to enter
a guilty plea. Four important factors made Sharp
decide to advise the defendant to plead guilty. First, by
pleading guilty, the defendant would avoid the
possibility of Getchman testifying against him.
Second, Sharp could continue representing the
defendant because he would not be compelled to testify
at trial or cross-examine Baxter. Third, a guilty plea
would also avoid the possibility of Sharp testifying
against his own client. If Sharp testified, there was a
strong possibility that he would have to testify as to
the contents of his first conversation with Baxter,
which implicated the defendant in the marijuana _
importation. Fourth, Sharp believed that the
defendant could cooperate with the government and

\

C-42

earn a reduced sentence based on substantial assistance.

Sharp testified that although he was concerned
about the repercussions of Baxter's testimony on his
career and reputation as a lawyer, he always placed the
defendant's interests before his own. Further,
Fitzgibbons's testimony supports Sharp's decision to
advise the defendant to plead guilty. Fitzgibbons stated
that at the time the defendant entered his guilty plea he
believed it was in the defendant's best interest.

The defendant argues that pleading guilty was
not a reasonable alternative to going to trial because
the defendant was obligated under the plea agreement
to forfeit $ 4 million dollars to the government.
Nonetheless, Sharp testified that he believed the
defendant and his brother Bucky Pegg could raise the
money. The defendant did not present any evidence
that would show that Sharp's belief was unreasonable.

Accordingly, the Court finds that Sharp's
representation of the defendant was not adversely
affected by Baxter's allegations. Therefore, the
defendant is not entitled to relief on his claim of
ineffective assistance of counsel.

C-43
Ill. WITHDRAWAL OF GUILTY PLEA

A. Rules cf Law

Pursuant to Rule 32(e), Fed. R. Crim. P., a
defendant may withdraw his guilty plea before
sentencing if the defendant shows there is a "just and
fair reason" for the withdrawal. A defendant does not
have an absolute right to withdraw his guilty plea prior
to sentencing. United States v. McCarty, 99 F.3d 383,
385 (11th Cir. 1996). In determining if the defendant
has met his burden the court must consider whether:
"(1) close assistance of counsel was available; (2) the
plea was knowing and voluntary; (3) judicial resources
would be conserved; and (4) the government would be
prejudiced if the defendant were allowed to withdraw
his plea." United States v. Buckles, 843 F.2d 469, 472
(11th Cir. 1988), cert. denied, 490 U.S. 1099, 104 L. Ed.
2d 1005, 109 S. Cr. 2450 (1989).

B. Merits

The government correctly asserts that the Court
need not address the merits of the defendant's plea
withdrawal claim because the claim is procedurally
barred. "Generally speaking, an available challenge to
a criminal conviction or sentence must be advanced on
direct appeal or else it will be considered procedurally
barred in a§ 2255 proceeding" Mills v. United States,
36 F.3d 1052, 1055 (11th Cir. 1994), cert. denied, 514

C-44

US. 1112, 115 S. Ct. 1966, 131 L. Ed. 2d 856 (1995); see
also Cross v. United States, 893 F.2d 1287, 1289 (11th
Cir.), cert. denied, 498 U.S. 849, 112 L. Ed. 2d 105, 111
S. Ct. 138 (1990) ("in a section 2255 federal habeas
motion, a movant may not raise claims that were not
presented on direct appeal unless he can show cause
excusing his failure to raise the issues previously and
actual prejudice resulting from the errors."); Greene v.
United States, 880 F.2d 1299, 1305 (11th Cir. 1989), cert.
denied, 494 U.S. 1018, 108 L. Ed. 2d 498, 110 S. Ct.
1322 (1990) ("in general, a defendant must assert an
available challenge to a sentence on direct appeal or be
barred from raising the challenge in a section 2255
proceeding."). "When a defendant fails to pursue an
available claim on direct appeal, it will not be
considered in a motion for § 2255 relief unless he can
establish cause for the default and actual prejudice
resulting from the alleged error." Mills, 36 F.3d at
1055; see also Greene, 880 F.2d at 1305 ("[a] defendant
can avoid this procedural bar only by showing both
cause for the failure to raise the claim on direct appeal
and actual prejudice arising from that failure.").
Alternatively, under the fundamental miscarriage of
justice exception, when a constitutional violation has
probably resulted in the conviction of one who is
actually innocent, a federal habeas court may grant
relief in the absence of a showing of cause for the

procedural default. Mills, 36 F.3d at 1055.

C-45

- The defendant has failed to demonstrate cause or
prejudice with regard to his failure to raise on direct
appeal his claim that the Court abused its discretion in
denying his motion to withdraw his guilty plea.
Likewise, the defendant has not shown the
applicability of the fundamental miscarriage of justice
exception. The Court has reviewed the entire record
and concludes that the defendant is unable to satisfy
either of the exceptions to the procedural default bar;
therefore, the defendant's failure to raise these claims
on direct appeal constitutes a waiver and bars him from
raising this claim now.

IV. BUCKY PEGG'S PLEA AGREEMENT

Although not relevant to the Court's ruling in
this case, the Court notes its outrage with the events
leading to Bucky Pegg's plea agreement with the
Middle District of Georgia. After the defendant
entered his guilty plea on November 29, 1994, the
defendant made efforts to satisfy his forfeiture
obligation under the plea agreement. To make the $ 4
million forfeiture payment, the defendant had to
arrange for money to be transferred into the United
States from abroad. Because the defendant was
incarcerated, he asked his brother, Bucky Pegg, to
accomplish the transfer. At this juncture, Bucky Pegg's
attorney, Jerome Froelich became involved. Froelich
demanded complete immunity for Bucky Pegg for any
criminal liability that could arise from the transfer of

C-46

the funds. R. Doc. 363, p. 9, & R. .+* . 398, p. 10.
After asking the United States Attorney's Office for
the Middle District of Florida for an immunity
agreement without success, Froelich directed his efforts
to trying to obtain a global agreement which included
several districts. In his efforts to negotiate a global
agreement, Froelich contacted the United States Justice
Department. The Justice Department then would
communicate with the different districts involved and
try to put the multi-district agreement together. R.
Doc. 398, p. 12.

On February 1, 1996, after months of
negotiations, the U.S. Attorney's Office for the Middle
District of Florida, through a letter signed by Collazo,
agreed to participate in a multi-district immunity
agreement granting Bucky Pegg the immunity he
requested. The multi-district agreement included the
Middle District of Florida, the Northern District of
Georgia, and the Middle District of Georgia. R. Doc.
363, Exhibit E.

On February 7, 1996, Collazo sent a letter to
Froelich informing him that the Middle District of
Florida could no longer participate in the multi-district
immunity agreement. R. Doc. 363, Exhibit F. The
reason the Middle District of Florida withdrew its
participation in the immunity agreement was that the
Southern District of Florida informed them that Bucky
Pegg was the subject of an investigation and that the

C-47

immunity agreement could prevent the Southern
District of Florida from investigating and prosecuting
Bucky Pegg. R. Doc. 398, pp. 167-8.

Because of Bucky Pegg's failed efforts to reach
an immunity agreement involving the Middle District
of Florida, Bucky Pegg directed his attention to the
Middle District of Georgia, where he ultimately
entered into a plea agreement on June 30, 1997.
Pursuant to the plea agreement, Bucky Pegg received
blanket immunity in exchange for the forfeiture of
approximately $ 47 million in cash and $ 5 million in
properties. R. Doc. 398, pp. 9-25.

Bob Sharp, the Deputy Chief of the Asset
Forfeiture and Money Laundering Section of the
Criminal Division, Department of Justice, testified that
the Acting United States Attorney in the Middle
District of Georgia ignored the directions of the
Department of Justice. R. Doc. 405, p. 239. Mary Lee
Warren, a Deputy Assistant United States Attorney,
instructed the Middle District of Georgia not to go
forward with the immunity agreement without her
approval or the approval of someone else in the
Department of Justice. The Middle District of Georgia
blatantly ignored Warren's directives and entered into
the plea agreement with Bucky Pegg. R. Doc. 405, p.
240. The Middle District of Georgia's actions, for all
practical purposes, resulted in Bucky Pegg being
permitted to buy his way out of imprisonment and sell

C-48

out his brother in the process.

— The Justice Department determined that it could
not set aside the plea agreement. Accordingly, the
funds of Bucky Pegg's forfeiture will go into the
Treasury Department's Asset Forfeiture Fund. Even
though there is nothing this Court can do to reverse
the outrageous and improper events that took place in
the Middle District of Georgia, the Court wants to
voice its repulsion over the Bucky Pegg plea agreement.

For the foregoing reasons, the defendant's
motion to vacate, set aside or correct his sentence

(Doc.348) is DENIED. The Clerk is instructed to
close the civil file.

DONE AND ORDERED in Tampa, Florida,
on April 28th, 1999.

Elizabeth A. Kovachevich
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0841%3A2. Public record. Not legal advice.